Political Questions Judicial Answers

Political Questions Judicial Answers: Does the Rule of Law Apply to Foreign Affairs?

Thomas M. Franck
Copyright Date: 1992
Pages: 212
https://www.jstor.org/stable/j.ctt7s8pb
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  • Book Info
    Political Questions Judicial Answers
    Book Description:

    Almost since the beginning of the republic, America's rigorous separation of powers among Executive, Legislative, and Judicial Branches has been umpired by the federal judiciary. It may seem surprising, then, that many otherwise ordinary cases are not decided in court even when they include allegations that the President, or Congress, has violated a law or the Constitution itself. Most of these orphan cases are shunned by the judiciary simply because they have foreign policy aspects. In refusing to address the issues involved, judges indicate that judicial review, like politics, should stop at the water's edge--and foreign policy managers find it convenient to agree! Thomas Franck, however, maintains that when courts invoke the "political question" doctrine to justify such reticence, they evade a constitutional duty. In his view, whether the government has acted constitutionally in sending men and women to die in foreign battles is just as appropriate an issue for a court to decide as whether property has been taken without due process. In this revisionist work, Franck proposes ways to subject the conduct of foreign policy to the rule of law without compromising either judicial integrity or the national interest. By examining the historical origins of the separation of powers in the American constitutional tradition, with comparative reference to the practices of judiciaries in other federal systems, he broadens and enriches discussions of an important national issue that has particular significance for critical debate about the "imperial presidency."

    eISBN: 978-1-4008-2073-3
    Subjects: Law

Table of Contents

  1. Front Matter
    (pp. i-vi)
  2. Table of Contents
    (pp. vii-viii)
  3. Acknowledgments
    (pp. ix-2)
  4. CHAPTER ONE Introduction
    (pp. 3-9)

    With that seemingly offhand remark, Chief Justice Marshall introduced into American jurisprudence a theory that continues to affect profoundly the way power is exercised in the United States. Whatever Marshall’s intent in these paragraphs, the effect was to initiate a constitutional theory, still asserted by many lawyers and judges, that foreign affairs aredifferentfrom all other matters of state in some crucial fashion. From this is sometimes derived the conclusion, one with which Marshall might well have disagreed,¹ that the conduct of foreign affairs by the political agencies should be immune to judicial scrutiny. What a paradoxical by-product of...

  5. CHAPTER TWO How Abdication Crept into the Judicial Repertory
    (pp. 10-30)

    There are hundreds of cases today in which federal courts face “political questions.” Stalwart federal judges think nothing of deciding such hot-potato issues as the constitutionality of the lines on maps demarking congressional¹ or school districts,² the hiring practices of fire departments,³ or standards for admission to medical schools.⁴ Yet these same jurists tend to turn coy when challenged to decide whether a military conflict, such as the one in Vietnam, ultimately involving the expenditure of tens of thousands of lives and hundreds of billions of dollars, is lawful when waged by the president on his sole authority without a...

  6. CHAPTER THREE Two Principled Theories of Constitutionalism
    (pp. 31-44)

    Abdicationism is generally defended by judges who practice it as a recognition that the courts are but one of three coequal branches of government. Professor Alexander Bickel, describing and lauding the judiciary’s “passive virtues,”¹ has identified its two conceptual components: constitutionally mandated limits and self-imposed prudential limits.²

    The constitutionally mandated limit on adjudication is either of very little or very great importance, depending on how it is construed. On the one hand, the limit may mean no more than this: If in the Court’s opinion either the presidency or Congress has acted within its constitutionally allotted ambit of political discretion,...

  7. CHAPTER FOUR Prudential Reasons for Judicial Abdication
    (pp. 45-60)

    The tendency of judges to refuse to adjudicate cases involving foreign-affairs or national-security issues originated in a giveback tactic employed as part of an overall strategy of judicial expansion. Courts deployed an utterly inappropriate notion borrowed from British imperial jurisprudence, which the judiciary reinforced by use of straw dicta and double-entry bookkeeping.

    That, however, is not the whole story. Were it so, it would be easy to refute the political-question doctrine and its penumbra insofar as it applies to foreign-affairs cases. It could be dismissed as a historic device of dubious origins, perhaps necessitated at an early stage of judicial...

  8. CHAPTER FIVE When Judges Refuse to Abdicate
    (pp. 61-96)

    As we have seen, many judges still dismiss foreign-affairs cases as nonjusticiable. They do this because of conceptual adherence to a constitutional theory of limited judicial review in “political” cases or nowadays more frequently because of the practical difficulty in assessing factual evidence, the absence of relevant legal standards, or the delicacy of the issues. Whether for theoretical or prudential reasons, a widespread tendency to defer to the political decision makers and foreign-relations experts persists.

    This tendency, however, is far from universal. Particularly in the Supreme Court, the political-question doctrine is now quite rarely used and may be falling into...

  9. CHAPTER SIX Mandated Adjudication: Act of State and Sovereign Immunity
    (pp. 97-106)

    Judges, when they refuse to take jurisdiction over foreign-affairs cases, purport to be deferring to the political branches’ superior wisdom in such matters and to the need for secrecy, speed, unison, and flexibility in defense of the national interest. In most of the cases we have examined, this judicial reticence sails under the flag of the political-question doctrine. When they apply that doctrine, the courts purport to be following the intent of the Constitution. In particular, the more deferential judges perceive their reticence as strengthening the capacity of the political branches to carry out assigned responsibilities in dealing with foreign...

  10. CHAPTER SEVEN Abolishing Judicial Abdication: The German Model
    (pp. 107-125)

    If our judges were to embark on a new approach to cases dealing with sensitive foreign-relations and national-security issues, they could be guided by the experience of their German brethren. While our legal culture is based on the common-law tradition of Great Britain, the British model is misleading for the reason, examined in chapters 2 and 3, that the object of the colonies’ revolutionary enterprise had been to sever their tie to the mother country’s system of executive prerogatives and parliamentary supremacy. These notions continue to hold sway at Westminster, making it profoundly different from our traditions of constitutionalism, limited...

  11. CHAPTER EIGHT A Rule of Evidence in Place of the Political-Question Doctrine
    (pp. 126-136)

    How much of a wrench would it be were U.S. courts to adapt and adopt a doctrinal approach similar to the one used by German judges? As we have seen, American judges have failed to impose uniformity, thereby leaving open the possibility of reform even while demonstrating the need for it. Further, there is evidence that the German approach is not really so alien to our jurisprudence.

    In 1837, Chief Judge Cranch of the D.C. Circuit Court wrote an opinion that presaged the German jurisprudence. It categorically refutes the doctrinal basis for judicial abdication underpinning the political-question doctrine. At issue...

  12. CHAPTER NINE The Special Cases: In Camera Proceedings and Declaratory Judgments
    (pp. 137-155)

    We may have something to learn from Germany, but we are also differently positioned. American foreign relations are infused with the special circumstances that go with being a superpower. Our foreign policy defends the frontiers of our national interest, but it is also the arrowhead of security for many other democratic nations that rely on us for their defense. Some of these democracies—Japan is the leading example—have been partially disarmed as a consequence of settlements ending great wars. Others live under military restrictions imposed by international agreement (Germany) or a voluntary (Switzerland) or imposed (Austria) policy of neutrality...

  13. CHAPTER TEN Conclusions: Does the Rule of Law Stop at the Water’s Edge?
    (pp. 156-160)

    Judicial review, as a countermajoritarian device to protect Americans against the arbitrariness of electorally empowered “factions,” was the great innovation the founders of American federalism grafted onto more traditional notions of republican virtue previously advanced by Plato, Machiavelli, Montesquieu, and Hume.¹ Jefferson had observed that “anelectoral despotismwas not the government we fought for.”² Madison too, inThe Federalist No. 10and elsewhere, warned against reliance on political organs to protect the basic rights and liberties of the citizen. “No man is allowed to be a judge in his own cause,” he wrote, “because his interest would certainly bias...

  14. Notes
    (pp. 161-192)
  15. Index
    (pp. 193-198)